Interflora Inc & Anor v Marks and Spencer Plc & Anor

Section 12(3) of the Human Rights Act 1998 generally requires an applicant for interim relief affecting expression to show that success at trial is more likely than not. The requirement is flexible, however, and the court may grant relief where the prospects are sufficiently favourable in the particular circumstances. The court must balance the competing Convention and property rights, together with the consequences of granting or refusing relief. In trade mark disputes involving commercial advertising, the central inquiry may be the parties’ competing risks of uncompensatable harm. A litigation-created status quo is not necessarily a strong factor. Where the merits are finely balanced and the competing harms are comparable, an interim injunction may properly be refused.

Interflora sought an interim injunction restraining Marks and Spencer from bidding on the keyword “interflora” pending a retrial. The underlying trade mark proceedings concerned sponsored links displayed after internet users searched for that term.

Arnold J had found for Interflora after trial and granted an injunction. The Court of Appeal identified legal errors affecting the factual assessment, ordered a retrial and discharged the post-trial orders. Interflora then applied for interim relief pending that retrial.

The issues were whether section 12(3) of the Human Rights Act 1998 applied, what threshold governed the application, and how the merits, competing harms and status quo should be balanced.

1. Application dismissed. A case management conference was required to organise the retrial. The claimant was ordered to pay two-thirds of the defendant’s costs of the application, assessed at £65,000.
2. Because the proposed injunction affected an advertisement, the defendant’s Article 10 right was engaged and section 12(3) of the Human Rights Act 1998 applied. The speech was commercial and concerned competition, but that did not remove the statutory requirement.
3. Applying Cream Holdings Ltd v Banerjee [2004] UKHL 44, the general approach under section 12(3) is that the applicant should probably succeed at trial. The requirement is flexible. A lesser degree of likelihood may suffice where the circumstances, including grave consequences or countervailing Convention rights, justify it.
4. The parties’ cases on the underlying infringement were each properly arguable and finely balanced. It was impossible to conclude that Interflora was more likely than not to succeed. The merits nevertheless comfortably exceeded the threshold for a triable issue under American Cyanamid.
5. The balance of convenience required close attention to uncompensatable harm. Interflora would suffer some unquantifiable loss of distinctiveness and custom if relief were refused, but the costs of its “Golden Box” strategy were quantifiable and likely recoverable if infringement were established. Marks and Spencer would also suffer unquantifiable commercial harm if restrained. The competing harms were comparable.
6. The status quo did not materially favour Interflora. Marks and Spencer’s absence from the market resulted from an injunction following a judgment later set aside, and there had been no injunction during the preceding five years. The market was not shown to be vulnerable to irrevocable long-term change.
7. An interim order could, in a proper case, restrain conduct which might ultimately prove lawful. Here, however, the proposed order was broad, no alternative advertisement had been put forward for assessment, and the balance of justice did not justify maintaining the litigation-created position.

• Court of Appeal: Set aside the trial judgment and post-trial orders, including the injunction, and ordered a retrial after identifying legal errors affecting the factual assessment.
• High Court (Chancery Division): Refused Interflora’s application for an interim injunction pending the retrial.